CENTER FOR ETHICS AND THE RULE OF LAW​

A reply in defense of the state secrets privilege

Editor’s note: This mini-symposium on the Abu Zubaydah decision, rendered by the Supreme Court on March 3, 2022, raises important issues about the state secrets doctrine and transparency in democratic governance. The first two pieces are reprinted with permission from the original publishers. All posts are available here.


A reply in defense of the state secrets privilege

Two articles, one by Mark Fallon and the other by Professor Claire Finkelstein, who are, respectively, the interim executive director and the faculty director of the Center for Ethics and the Rule of Law (CERL) at the University of Pennsylvania, have criticized the recent decision by the U.S. Supreme Court in United States v. Zubaydah. The Court concluded that the state secrets privilege had been properly invoked by the government to protect against the disclosure of information regarding a foreign site that was allegedly used in the CIA’s “enhanced interrogation” program—a program broadly condemned by critics and the U.S. Congress as employing torture. I disagree with their criticisms of the Zubaydah decision while acknowledging that, whether described as “torture” or, in the CIA’s more euphemistic patois, as “enhanced interrogation,” the program represents one of the darker moments in the history of the U.S. intelligence community.

Some background will assist. Abu Zubaydah, who remains incarcerated at the Guantánamo Bay detention facility, has sought legal redress in Poland for his treatment in 2002 and 2003 at a CIA detention facility that has been publicly identified, although never officially confirmed by the U.S. government, as being located in Poland. As recounted in the Supreme Court’s opinion, Zubaydah initiated legal action in U.S. federal court seeking to gain access to information that he contends will assist in the case he is pursuing in Poland. Believing that the information sought by Zubaydah (which included a request to depose two CIA contractors) would reveal sensitive details about CIA activities and the U.S. government’s relationship with Poland, the government intervened in Zubaydah’s U.S. court proceeding and asserted the state secrets privilege. A declaration from the director of the CIA asserted that permitting the CIA contractors to testify would disclose operational details about CIA activities and confirm or deny whether Poland had cooperated with the CIA—a fact of considerable sensitivity to the Polish government.

As the Supreme Court’s opinion notes, the lower federal courts largely accepted the government’s assertion of the state secrets privilege, but the Ninth Circuit concluded that the privilege did not cover information about the location of the detention site based on its belief that the site’s location had already been publicly disclosed and that the state secrets privilege did not bar disclosure of information that was no longer secret. The government appealed that ruling.

On March 3, 2022, the Supreme Court determined that the Ninth Circuit had erred and that the government had properly asserted the privilege. In contrast to the views expressed by Mr. Fallon and Professor Finkelstein, I believe that the court’s ruling in the Zubaydah case is the correct one.

It is a shibboleth of the legal profession that bad facts can produce bad law, and the facts surrounding Zubaydah’s treatment at the hands of the CIA are abhorrent. Those facts have led many critics of the CIA’s activities to condemn the Supreme Court’s decision as condoning the use of the state secrets privilege to cover for what they view as unlawful and immoral conduct. Candidly, however, sustaining the state secrets privilege to protect against the potential harm to national security that would result from a damaging disclosure of information that might disrupt the U.S. diplomatic and clandestine intelligence relationship with an important foreign ally does not, in my view, pose any “long term implications for the rule of law and today’s battle between the forces of democracy and autocracy.” Rather than allowing the repugnant facts of Zubaydah’s treatment to dictate the outcome of an important decision affecting a critical evidentiary privilege, the Supreme Court’s decision represents the logical application of a privilege that serves a fundamental role in preserving an appropriate balance in the constitutionally created separation of powers between the three branches of government.

The courts have long recognized the importance of the state secrets privilege

Each branch of government must interpret the Constitution in the performance of its assigned constitutional duties, and the interpretation of its powers by any co-equal branch must be accorded great respect. In particular, the Supreme Court has observed that “utmost deference” should be accorded to a president’s exercise of his Article II duties in the areas of “military or diplomatic secrets” because:

The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.

Where litigation affects national security, the state secrets privilegeproperly invoked by the executive branch has permitted the government to bar, as the Supreme Court first described in a decision rendered in 1953, the disclosure of information if “there is a reasonable danger” that disclosure will “expose military matters which, in the interest of national security, should not be divulged.” Far from constituting a threat to representative democracy, the importance of this privilege is best captured in this excerpt from a 1978 decision (Halkin v. Helms) by the District of Columbia’s federal court of appeals:

A ranking of the various privileges recognized in our courts would be a delicate undertaking at best, but it is quite clear that the privilege to protect state secrets must head the list. The state secrets privilege is absolute. However helpful to the court the informed advocacy of the plaintiffs’ counsel may be, we must be especially careful not to order any dissemination of information asserted to be privileged state secrets. ‘It is not to slight judges, lawyers, or anyone else to suggest that any such disclosure carries with it serious risk that highly sensitive information may be compromised.’

In theory, the state secrets privilege serves the purpose of affording protection to the nation’s most sensitive secrets during legal proceedings—a function not only practical but, in a constitutional sense, arguably essential to honor the separation of powers. Its availability permits the executive branch to protect information where secrecy is necessary to its military and foreign affairs responsibilities. The Supreme Court has suggested that the state secrets doctrine allows the courts to avoid the constitutional conflict that might arise if the judiciary sought to demand that the executive disclose highly sensitive military secrets. In U.S. v. Nixon, the Supreme Court further articulated the doctrine’s constitutional dimension in observing that the state secrets privilege provides exceptionally strong protection because it concerns “areas of Article II duties [in which] the courts have traditionally shown the utmost deference to Presidential responsibilities.” It has been said that the privilege “performs a function of constitutional significance, because it allows the executive branch to protect information whose secrecy is necessary to its military and foreign affairs responsibilities.” From a practical standpoint, it provides a measure of assurance that the protection of the nation’s secrets and its security will be addressed principally by the branch of government with the greatest institutional competence to serve that purpose.

Consequently, where the executive branch asserts the privilege, the role of the court is a narrow one. Once a court concludes that the privilege has been properly asserted, further inquiry is limited to ascertaining whether there is a reasonable danger that compulsion of the evidence will disclose, as the Supreme Court states in Zubaydah, “matters which, in the interest of national security, should not be disclosed.”

The acceptance of the privilege in Zubaydah is no cover-up for the CIA

Based on a declaration submitted by the director of the CIA, the Supreme Court concluded that the government had properly invoked the state secrets privilege. Critics of the Zubaydah decision have seized on the dissent by Justice Gorsuch, who clearly entertained doubts that the invocation of the privilege served any purpose other than attempting to shield the CIA’s activities from scrutiny. In Gorsuch’s view, the majority decision reflected excessive deference to the executive branch, and it was essential that courts carefully assess the need for the privilege against “the competing powers that Articles I and III have vested in Congress and the Judiciary.”

With all due respect to Justice Gorsuch who has been a lawyer and judge but has never worked in intelligence or foreign policy, the standards applied by the Court’s majority in addressing the privilege issue reflect the appropriate balance between the “competing powers” created by the Constitution. Frankly, it is unclear what Gorsuch contemplates a lower court doing to avoid “excessive deference” once the government properly invokes the privilege. In Zubaydah, for example, should the federal district judge have compelled the appearance of the director of the CIA and interrogated him as to the sensitivity of the information the government sought to protect? If so, what expertise would the judge have brought to the task of evaluating the level of harm that might result from the disclosure of facts revealing the nature and scope of the clandestine and diplomatic activities in which the U.S. government engages with a foreign power? Again, affording all respect that might be due, federal courts rarely possess the institutional competence needed to properly assess the myriad elements at play in a situation where the government has properly asserted the state secrets privilege.

Two other points are worthy of note. First, as the Supreme Court made clear, the fact that some quantum of the information arguably responsive to Zubaydah’s discovery requests was already in the public domain through unofficial sources does not vitiate the assertion of privilege. By way of historic example, in 1975-76, there were extensive public disclosures made during the Church Committee hearings on U.S. intelligence activities regarding two specific NSA collection programs—Projects Minaret and Shamrock—that involved the warrantless collection of U.S. person communications over an extended period of time. Following these disclosures, a number of former Vietnam war protesters sued the former government officials who had headed up the intelligence agencies involved with the Minaret and Shamrock programs. The government intervened and asserted the state secrets privilege with the secretary of defense lodging the formal claim of privilege to prevent further disclosures of NSA collection activities. The protesters insisted that the extensive public disclosures concerning Minaret and Shamrock made during the congressional hearings negated any possibility of further compromise and that acceptance of the privilege would effectively allow the defendants to avoid liability for their unconstitutional acts. Using logic strikingly similar to Zubaydah, the District of Columbia Court of Appeals rejected this argument while concluding that, notwithstanding the extensive disclosures already in the public domain, the “confirmation or denial that a particular plaintiff’s communications have been acquired would disclose NSA capabilities and other valuable intelligence information to a sophisticated intelligence analyst.”

Second, the government’s assertion of the state secrets privilege in any individual case is ultimately a decision made by the Department of Justice (DoJ). In 2009, the attorney general issued a memorandum to the heads of all executive departments addressing DoJ policies and procedures governing invocation of the state secrets privilege while advising that DoJ policy is to assert “the privilege only to the extent necessary to protect against the risk of significant harm to the national security.” Elaborating, the attorney general emphasized that the Justice Department “would not defend an invocation of the privilege in order to: (i) conceal violations of the law, inefficiency, or administrative error; (ii) prevent embarrassment to a person, organization, or agency of the United States government; (iii) restrain competition; or (iv) prevent or delay the release of information the release of which would not reasonably be expected to cause significant harm to national security.”

The attorney general’s memorandum requires that any request by an executive department for assertion of the privilege be accompanied by the evidentiary support necessary to support its application, and the request must be endorsed by the assistant attorney general for the DoJ division responsible for the litigation matter in question. Once endorsed by the appropriate DoJ official, a “State Secrets Review Committee” is assembled to evaluate the assistant attorney general’s recommendation and decide whether DoJ will support invocation of the privilege. Consequently, notwithstanding Justice Gorsuch’s apparent suspicions, complicity at multiple levels of the Department of Justice would have been necessary for the state secrets privilege accepted by the Supreme Court in Zubaydah to have been advanced for the purpose of subverting justice and concealing CIA misconduct.

The state secrets privilege represents no existential threat to either representative democracy or the rule of law. Rather, it serves as a relief valve permitting the release of dangerous frictions where the colliding tectonics of the separation of powers might otherwise produce a constitutional confrontation.


George W. Croner was the principal litigation counsel in the Office of General Counsel at the National Security Agency (NSA). He is a senior fellow at the Foreign Policy Research Institute (FPRI) in its national security program and a member of CERL’s Advisory Council. You can follow him on Twitter (@GeorgeCroner) and find a list of his publications at FPRI.org.


The opinions expressed in this post are those of the authors and do not necessarily represent CERL’s official views.

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A reply in defense of the state secrets privilege